850 F.2d 1155 (6th Cir. 1988), 87-3654, Knafel v. Pepsi Cola Bottlers of Akron, Inc.

Docket Nº:87-3654.
Citation:850 F.2d 1155
Party Name:Jean KNAFEL; Karen Wuchich, Plaintiffs-Appellants, v. PEPSI COLA BOTTLERS OF AKRON, INC.; Stanley Levin; James Davis; and General Cinema Corporation, Defendants-Appellees.
Case Date:July 07, 1988
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1155

850 F.2d 1155 (6th Cir. 1988)

Jean KNAFEL; Karen Wuchich, Plaintiffs-Appellants,

v.

PEPSI COLA BOTTLERS OF AKRON, INC.; Stanley Levin; James

Davis; and General Cinema Corporation,

Defendants-Appellees.

No. 87-3654.

United States Court of Appeals, Sixth Circuit

July 7, 1988

Argued March 24, 1988.

Page 1156

Timothy A. Shimko (argued), Spangenberg, Shibley, Traci & Lancione, Cleveland, Ohio, for plaintiffs-appellants.

David P. Hiller, Millisor, Belkin & Nobil, Columbus, Ohio, Robert B. Laybourne, Laybourne, Smith, Gore & Goldsmith, Akron, Ohio, Gregory L. Hammond, Lead Counsel (argued), Hahn, Loeser & Parks, Cleveland, Ohio, for defendants-appellees.

Before MILBURN and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

MILBURN, Circuit Judge.

Plaintiff-appellant Jean Knafel ("Knafel") appeals the judgment of the district court granting defendants-appellees' motion for summary judgment on Knafel's claims of retaliatory discharge in violation of Sec. 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq.; retaliatory discharge for filing a workers' compensation claim in violation of Ohio Rev.Code Sec. 4123.90; and intentional infliction of personal injury and emotional distress. Plaintiff-appellant Karen Wuchich ("Wuchich") appeals the judgment of the district court granting defendants-appellees' motion for summary judgment on Wuchich's claim that defendants intentionally caused her personal injury and emotional distress in retaliation for her participation in a prior civil rights action against defendants. Knafel's and Wuchich's actions were consolidated by the district court on June 9, 1987. For the reasons that follow, we dismiss plaintiff Knafel's appeal for lack of jurisdiction since there is no final judgment in the district court, and the district court's purported certification under Fed.R.Civ.P. 54(b) was improper. Further, we affirm the district court's grant of summary judgment dismissing plaintiff Wuchich's action, as her cause of action is preempted under Sec. 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. Sec. 185(a).

I.

  1. Knafel's Action

    On February 27, 1986, Knafel filed a complaint in district court against five defendants, Pepsi Cola Bottlers of Akron, Inc. ("Pepsi"); Stanley Levin ("Levin"), the Vice-President and General Manager of Pepsi; James Davis ("Davis"), the Production Manager at Pepsi; General Cinema Corporation ("GCC"), a corporation which, together with Pepsi, bottled soft drinks for the Ohio area; and the Truck Drivers Local Union No. 348 ("the Union"). The complaint was framed in four counts, and Count I alleged a cause of action only against defendants Pepsi, Levin, Davis, and GCC. Knafel charged in Count I that she had been discharged by her former employers as a result of her involvement in a prior civil rights action against these defendants. She claimed that this retaliatory discharge occurred in violation of Sec. 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-3(a). The prior action, Knafel, et al. v. Pepsi Cola Bottling of Akron, Inc., et al., is referred to by the parties as Case No. 83-3534A. 1

    Count II alleged a cause of action only against the Union (not a party to this appeal) and charged that the Union had breached its duty of fair representation, although the complaint made no reference to Sec. 301 of the LMRA. Knafel also alleged in Count II that the Union had violated Title VII by discriminating against her

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    in retaliation for her participation in the earlier action; viz., C83-3534A.

    Counts III and IV were both pendent state law claims. In Count III, Knafel alleged a cause of action under Ohio Rev.Code Sec. 4123.90, charging that her employers had retaliated against her for filing a workers' compensation claim. 2 In Count IV, Knafel alleged that defendants had intentionally caused her both personal and emotional injury by insisting she perform work which subjected her to injuries that defendants "intended or knew were substantially certain to occur as a consequence of such intentional conduct." J.A. at 16-17.

    Knafel began working at Pepsi in 1978 and worked primarily on the bottling line at the company through her termination on September 18, 1985. Apparently, Knafel experienced back problems and, as a result, was absent from the company from time to time on medical leave. Knafel alleged the company intentionally assigned her to projects which were calculated to aggravate her back condition, allegedly in retaliation for her participation in the action charged in Case No. 83-3534A. Knafel claimed that through a combination of her work assignments and job conditions, culminating with her termination, the defendants continued to retaliate against her and discharged her in violation of Title VII. Defendants, however, countered that Knafel was terminated solely for gross and excessive absenteeism and that all work assignments given to her were proper. 3

  2. Wuchich's Action

    On September 24, 1986, Wuchich filed an action in the Summit County Court of Common Pleas, Summit County, Ohio, against these same defendants (except the Union), alleging that the defendants had intentionally caused her harm in retaliation for her participation with Knafel in Case No. 83-3534A. Defendants removed the action to the district court where Wuchich's action was later consolidated with the Knafel proceeding.

    Wuchich is still employed by Pepsi. She claims that the situation of her present employment, including job assignments and supervisor comments, is intended to intentionally inflict harm upon her. Defendant Pepsi claims that any changes in Wuchich's work assignments have been strictly the result of business necessities and, further, that Wuchich has not lost time at work or suffered any other monetary injury as a result of defendants' actions.

  3. District Court's Judgment as to Knafel's Action

    On August 11, 1986, defendants Pepsi, Levin, Davis, and GCC moved for summary judgment against plaintiff Knafel. The court, on April 27, 1987, entered judgment, concluding first that Count I of the complaint, alleging a violation of Title VII, must be dismissed for lack of jurisdiction as to defendants Levin, Davis, and GCC because Knafel failed to name these three defendants as respondents in a charge of discrimination filed with the EEOC on October 25, 1985. The court found that a failure to name a defendant as a respondent before the EEOC strips the court of Title VII jurisdiction. The court, however,

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    denied defendant Pepsi's motion for summary judgment as to Count I, and this aspect of Knafel's complaint remained pending before the district court at the time of her appeal.

    As to Count II, the court dismissed Knafel's claims against the Union under Sec. 301 of the LMRA for lack of jurisdiction because Knafel had not alleged that she had attempted to exhaust internal union remedies. The court, however, ordered that Knafel's Title VII claim against the Union should proceed to trial, noting that the Union had failed to file a dispositive motion with the court. Thus, the court retained jurisdiction of the Title VII claim against the Union.

    With regard to Knafel's pendent state law claims presented in Counts III (retaliatory discharge for filing a workers' compensation claim) and IV (intentional infliction of injury), the court held that under Sec. 301 of the LMRA, the claims are preempted as "resolution of [these] state-law claim[s] is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract...." J.A. at 372 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985)). 4 Subsequently, on June 9, 1987, the district court granted summary judgment dismissing Knafel's Counts III and IV. The court then certified for purposes of appeal its dismissal of Counts III and IV pursuant to Fed.R.Civ.P. 54(b). 5 In certifying this aspect of Knafel's action, the court stated: "[A]s to Count III and Count IV of the complaint, the court ... expressly determines that there is no just reason for delay and instructs the Clerk to enter final judgment, pursuant to Rule 54(b) ... in favor of defendants [Pepsi, Levin, Davis and GCC]...." J.A. at 418-19.

  4. District Court's Judgment as to Wuchich's Action

    On May 4, 1987, defendants in the Wuchich action filed a motion for summary judgment which was granted by the district court on June 9, 1987. The court found that Wuchich's action (which paralleled Count IV of Knafel's complaint) should be dismissed since her claim of intentional infliction of injury is likewise preempted under Sec. 301 of the LMRA. As Wuchich's action involved only this one claim, the court's grant of summary judgment in favor of defendants finally disposed of Wuchich's case. Notice of appeal was jointly filed by Wuchich and Knafel on July 8, 1987.

    II.

    A.

    Knafel first argues that the district court erred in...

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